Dismissed

Jaydeep @ Papya Rajanikant Bhate v. the State of Maharashtra

Bombay HC12 Jul 2005APEAL/128/1997

Case brief

AI extract

What is this about?

This criminal appeal against conviction under Section 302 IPC for murder was dismissed. The High Court upheld the trial court's finding of guilt based on circumstantial evidence, including the accused leaving the hotel alone after checking in with the deceased and disclosing the body's location to police.

What did the court decide?

Appeal dismissed; appellant directed to surrender and serve remainder of sentence.

Jaydeep @ Papya Rajanikant Bhate Vs the State of… — Murder and Culpable Homicide | Bombay HC (2005)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE JURISDICTION CRIMINAL APPEAL NO.128 OF 1997 Jaydeep @ Papya Rajanikant Bhate ) Age 24 years, R/o.Behind 100 Road,) Jotiram Aakhada, Sangli, ) At present in Katamba Jail, ) Kolhapur. ) Appellant (Org.Accused) Vs. The State of Maharashtra. ).. Respondent

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Shri N.V.Pradhan with Ms S.D.Khot and Shri S.S.Pednekar for the appellant.

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Ms P.H.Kantharia, APP for State.

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CORAM : V.G.PALSHIKAR &

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R.C.CHAVAN, JJ

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DATED : 12TH JULY, 2005

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ORAL JUDGMENT : ( Per R.C.Chavan, J )

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1.	Taking	exception t	o his conviction for	offence
punishable	under	Section	302 of	Indian	Penal	Code	and
resultant	sentence	of	imprisonment	for	life and		fine
of Rs.1,000/- im Papya Rajanikan	posed upon him t Bhate has pre	, the accus ferred this a	ed Jaydeep @ ppeal.

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2.		The appellant came to be prosecuted for murder
of	one	Sapna, a Prostitute. The	appellant	was

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seemingly having a steady carnal relationship with Sapna for quite some time. He used to pick up Sapna from hotel Gandharva at Miraj. On 28th April, 1996, he took her to hotel Elegant at Kolhapur. The accused and Sapna registered themselves as Shri A.R.Patil and Smt.S.A.Patil and were allotted Room No.203 of hotel Elegant. Accused strangulated Sapna to death in course of his stay at the said hotel. On 29th April, 1996, between 7.00 p.m. and 8.00 p.m., accused came to the Receptionist’s Desk and handed over key of Room No.203 of the said hotel and told Receptionist not to disturb his female companion who was sleeping in the

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room. He left after paying for further stay since

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room was initially booked only for one day.

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3.		Cur	iously the accused seems to have gone to
police	statio	n	Sangli City at about 10.30 p.m..	The
accused	visit	ed	the said police station and	then
disclosed	to		the Head Constable on duty that he	had
committed		a	murder at Kolhapur. Accused informed	the
officer	on	duty	that dead body was in Room No.203	of
Hotel	Elegant,		Kolhapur. Police Station House	Officer
H.C.Rajpoot		also	received from the accused the	bills
for	eatables		supplied by the hotel Elegant to	the
accused.		On	being informed, Shahupuri Police	Station,
Kolhapur		sent	an officer to verify the correctness	of
telephonic		mess	age received from Sangli Police.	Dead

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body	of Sapna	was accordingly found in	Room No	.203 of
Hotel	Elegant.	An accidental death	was	registered.
After	performing	inquest, dead body	was sent	for
post-mortem	exam	ination. An officer	was also	deputed
to	Police Stat	ion, Sangli City, to	bring the	accused.
A rep	ort was	lodged by PI Narendra	Mahadev	Waghmale
whereupon,	an	offence was registered.	In course	of
investigation,	polic	e recorded	statements	of
witnesses,	seized	incriminating articles,	had	articles
examined	by Fo	rensic Science Laborat	ory and	on
completion	of	investigation, sent char	ge sheet	to
learned	Chief	Judicial Magistrate,	Kolhapur,	who

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committed the case to the Court of Sessions at Kolhapur.

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4.	The appellant-accused pleaded not	guilty to
the charge	of murder framed	by	the	learned	3rd
Additional Sessions	Judge, Kolhapur. Hence, he was
put on trial.

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5.		The	prosecuti	on examin	ed in all 15 witnesses
in	its	attem	pt to	bring	home guilt of	the	accused.
The	accused	too	was	examin	ed under Section	313 of	Code
of	Criminal		Procedu	re	and took defence	of	denial.
Upon	consid	eration		of	the prosecution	evidence	in
light	of	arg	uments	adva	nced, the	learned	3rd
Additio	nal	Ses	sions	Judge,	Kolhapur, held	the	accused

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him to undergo

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guilty of murder and sentenced

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imprisonment for life and fine of Rs.1,000/-. Being

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aggrieved thereby, the present appeal has been filed.

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6.		We	have heard learned coun	sel for the
appellant	an	d	learned Additiona	l Pu	blic	Prosec	utor	for
State.		We	have gone through	the	record	with	the	help
of	both	the	learned counsel	in ord	er to	exam	ine	the
correctness		of	the findings	recorded	by	the		learned
trial	Judge.		P.W.3 Dr.Patil	who	cond	ucted	post	-mortem
examinatio	n	was	cross-examined	about	the	man	ner	in
which	the	vic	tim died of	Asphyxia	.	Acco	rding	to
Dr.Patil,	there	we	re no marks	of fin	gers	on	the	throat
of	the	victim	and also the	ligature	mark	was		oblique

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making it consistent with the theory of being hanged

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rather than strangulated by a ligature.

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7.		The fa	ct that th	e victim met wit	h death insid	e
Room	no.	203	of	hotel	Elegant	at	Kolhapur	is
established		from	t	he inques	t pan	chanama	at	Exhibit-16
which	w	as adm	itted	by defe	nce.	P.W.9-Ni	tin	Zanpure,
who	is	Recepti	onist	at hotel	Elegant	, states	that	on
29th	April,	1	996,	he had	received	a	telephone	call
from	the	police	who	asked his	master	to go	to	Room
No.203	and	see	what	was to	be fou	nd.	According	to
him,	he	accompan	ied	his Ma	ster S	hri Sh	ripatrao	Ghugare
to	Room	No.203	and	found body	of a	woman	on the	cot.

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He	states	that	they	closed	the door	and	infor	med	the
police	on	tele	phone	about	the same		and		thereafter
police	came	to	the	hotel.	Thus, the	fact		that	the

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dead body was found in Room No.203 of hotel Elegant at

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Kolhapur is duly established.

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prior to his examination i.e. before 8.15 a.m. on

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29th April, 1996.

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even after the marriage with him, she continued with

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prostitution.

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10.	The	prosecution	examined			o	ne Naren	dra
Konkankar,	as	P.W.4,	serving	as	Manag	er	in	hotel
Gandharva	at	Miraj.	He too	stated	that	he	knew	the

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victim		Sapna @ Laxmi becaus	e s	he used to visit	permit
room	of	hotel Gandharva. He	stat	ed that Sapna use	d to
stay	in	the lodge for even	two	days at a stretch	with
her	cus	tomers since about		one year before	the
incident.		P.W.4-Konkankar also	st	ates that he	knows
the	a	ppellant Jayadeep @	Papya	Rajanikant Bhate	since
he	was	also a visitor to	the	permit room in	hotel
Gandharv	a.	The witness ho	wever	stated that	the
appellant	ne	ver came to the	hotel	with Sapna and	added
that	he	did not remember i	f he	had seen Sapna	and
appellant		together. Thereupo	n,	he was	declared
hostile		and in the cross-ex	aminati	on, stated that	he
told	the	police that accused	and	the victim used	to
come	to	the hotel Gand	harva	together for	victim’s
business		of prostitution.	He	also identified	the
accused	in	the Court to be	the	same person.	The
witness		was cross-examined ab	out	the absence of	entry
and	name	of the appellant in	the	hotel register.	This
is	inconse	quential, since a	person	visiting hotel	with
a	prostitu	te may avoid giving	his	real name in	the
hotel		register. Curiously	in	the cross-exa	mination,
towards	the	end, the witness	st	ated that after	hearing
the	news	(about death of Sap	na),	he came to know	that

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the person who used to wander with Sapna, was Jayadeep

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@ Papya Rajanikant Bhate, i.e. the accused.

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P.W.6-Sanjay Petkar drives an auto-rickshaw

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and	ordinarily	parks	his ricksh	aw	ne	ar hot	el G	andharva
at	Miraj.	He	therefore knew	the	victi	m, who	used	to
stay	in th	e per	mit room of	the	said	hotel	G	andharva.
He	states	that	he also knew	ac	cused	Jayadee	p	because
Jayadeep	too	freque	ntly visited	the		permit	room	riding
in	his a	uto-ricks	haw. He sta	ted	that	he	never	saw
both	accused	and	the victim	comin	g	together	to	hotel
Gandharva	but	claimed	that once	or	twi	ce, he	had	taken
the	victim	and	the accused	by	his	auto-r	ickshaw	to
S.T.stand.		It	may thus be	seen	tha	t the	victim	and
the	appellant	were	well known	to	each	other	and	were

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presumably enjoying each others company for quite some

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time before the incident.

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12.	P	.W.2-Shripatrao Ghugare,	owner of ho	tel
Elegant,	states	that on	29th April,	1996,	he	was
present	at	his hotel and	that tw	o customers,	male	and
female,	were	staying in	a room	No.203 of	his	hotel.
Since	the	witness had no	t stated	about even	ts on	28th
April,	1996,	he was	declared	hostile	and	was
cross-exam	ined	by the lear	ned APP.	In	course	of
cross-exam	ination,	he contradicte	d the	portions	in	his
police	state	ment regarding	arrival of	couple	at	5.15
p.m.	on 28	th April, 1996.	What	the learned	APP	could
not	achieve	was however	achieved	by defence		counsel,
because,	in	paragraph 7	of cross	-examination	of	this
witness,	the	defence made	the	witness	prove	at

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Exhibit-22 a bill showing the time of arrival of the

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couple at 17.15 hours on 28th April, 1996 and time of

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departure as 12 noon on 29th April, 1996.

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13.		P.W.7	-Govind	Kokare,	a Waiter	at hotel
Elegant,	a	lso	stated	that	on	28th April,	1996,	a	male
and	a	female	cus	tomer	checked	-in Room	No.203	of	their
hotel.		He	stated	that	these	customers	were in		their
hotel	in	the	past	also	and	the accu	sed pres	ent	before
the	Court		was		the	same	customer.		The
cross-exam	ination		of	this	witne	ss only	fortified		the

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conclusion that the accused was the customer who had

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checked-in Room No.203 on 28th April, 1996.

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To leave the matter in no doubt, P.W.8-Ganpati

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Kamble,	a	nother	Re	ception	ist in	hotel	Eleg	ant,	stated
that	a c	ouple	by		name	A.R.Patil	and		S.A.Patil
checked-in	Room	No.	203	in	their ho	tel on	28th	and	29th
April,	1996.		The	wit	ness ho	wever re	fused	to	identify
the	accused	as	the	said	person	and,	therefore,	ha	d to
be	declared	ho	stile.		In cour	se of	c	ross-ex	amination
by	the lear	ned	APP,	he	admitted	having	stated	to	the
police	that	he	came	to	know	that S.	A.Patil	was	really

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Laxmi, who used to work as prostitute and A.R.Patil

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was the accused person i.e. Jayadeep @ Papya Bhate.

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P.W.9-Nitin Zanpure too was working as

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Receptionist	a	t ho	tel Elegant	and	sta	ted	that o	n 28th
April,	1996,	a	couple,	who	c	heck	ed-in by	name
A.R.Patil	and	S.A.Patil,	stayed	in	Room		No.203 on	28th
April,	1996.		He too was	relu	ctant	to	identify	the
accused	as	male	customer	who	checke	d-in	Room	No.203
and	was	declared	hostile.	Towa	rds t	he	end of	cross
examination	by		the learned	APP,	he		however	admitted
that	he came	to	know that	the	name	of	male	passenger
was	not A.	R.Patil	but was	Jaydeep	@		Papya	Rajanikant
Bhate.	In	cross-e	xamination	on	behalf		of the	accused,

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he went to state that he had never seen the accused

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prior to his deposition before the Court.

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Similar is the vacillating version of another

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Waiter	P.W.10-Mahe	sh Ku	mbhar	working	in hotel	Elegant.
But it	may	be se	en	from the	evidence of	these
witnesses	that	along	with	the	victim, a	male
passenger,	whose	name	was	Jaydeep @	Papya Bhate,	had
checked-in	the ho	tel on	28th	April,	1996 at about	5.15
p.m.	The	evidence	of	P.W.4-Konkan	kar would show	that

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accused was the same person who checked-in Room No.203

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with the deceased.

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P.W.2 Ghugare, owner of hotel Elegant, stated

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that	on 29th	Apr	il,	1996	, at	about	9.0	0	to	9.30	p.m.,
customer	in	Room	No.	203	handed	over	key	to	him.		He
also	stated	in	the	cr	oss-examin	ation	on	b	ehalf	of	the

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accused	that	the person	concer	ned	paid	a sum	of
Rs.400/-	to	him and a	ccordingly		Ghug	are passed	a
receipt.		P.W.9-Nitin Z	anpure,	Rec	eptionist	in	the
hotel	Elegant,	stated that	male	cust	omer	from	Room
No.203	came to	him on 29th	April,	199	6 at	about 7	to 8
p.m.	and	handed over ke	y of	the	said	room to	him.
The	witness	also informs	that	the	cus	tomer told	the
witness	not	to disturb "M	adam"	as	she	was sleepin	g in
the	room.	The witness	states	that	the	customer	gave

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him money but he did not remember the amount. He

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states that thereafter customer did not come back.

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The evidence of P.W.10-Mahesh Kumbhar would

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show	that	he	reluct	antly admits	havin	g state	d to		the
police	that	on	29th	April, 1996	at	about	7.30	or	8.00
p.m.,	Jaydeep		Bhate	asked him	to	bring	rickshaw		and
accordingly	the		witness	brought	aut	o-rickshaw	in		which
Jaydeep	alone		went	away from	hotel	Elegant.		It	is
pertinent	to	note	that	there is	no	suggesti	on to		the

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witness in respect of this statement in the

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cross-examination on behalf of the accused.

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In our opinion, this evidence would clearly

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establis	h	that	from	28th	April,	1996	till the	evening
of	29th	April,	1996,	the	appellant	and	the victim	were
in	Room	No	.203	of hotel	Elegant	at	Kolhapur.	The
victim		was	possibly	killed	before	the	morning of	29th

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April,	1996	and within	2-3 ho	urs	of la	st meal	as	could
be	seen	from medical	evidence.		The	appellant	was	in
the	said	room till he	left i	t on	the	evening	of	29th
April,	1996	. This	evidence	of	victim	alo	ne	having
been	seen	last togethe	r in		the	company	of	the
appellant	a	nd the	absence	of	possibility	of	any	one
else	having	access	to the	said	room	wo	uld	clearly
indicate	involv	ement of	the a	ppellant	in	murder	of	the
victim.		Speculation	about	motive	to	commit	murd	er is
unwarrante	d	because there	was	no	third	person	in	the
room	in	question.	The v	ictim	and	accused	had	entered
the	room	alive and	the a	ccused	alone	came	out	alive
from	the	room.	Therefore,	this	evide	nce is		adequate

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to hold that the learned Trial Judge was right in

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concluding that the accused had murdered the victim.

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20.	Learne	d counsel for the appellant has raise	d
some	questions	pertaining to a state	ment mad	e by	the
appellant	before	P.W.12-S.C.Rajput	of	Sangli	City
Police	Station.	It may be seen	that ac	cording	to the
prosecution,	the	accused went	to	police	station,
Sangli	City, at	about 8.30 p.m.	on 29th	April,	1996
and	informed	the officer in-charge	about	the	murder
committed	by	him. The officer	recorded	his	statement
and	asked t	he police station Sha	hupuri at	Kol	hapur to
check	up at	the place where the	murder	was	allegedly
said	to have	been committed.	Learned c	ounsel	for the

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appellant	wondered as	to	how after	le	aving	Kolhapur	at
about	9.00 to	9.30 p.	m., the	appella	nt	could	have
reached	Sangli C	ity Polic	e Station,	at		about	10.30
p.m.	First, it	may be	seen that	time	of	9.30	p.m.
comes	from P.W.2	Ghugare,	owner	of	hote	l Elegant,	who
would	naturally be	intere	sted in		prote	cting re	putation
of	his hotel as	well as	that of	his	cus	tomers.	His
reluctance	in going	along	with	the	prose	cution can	be
seen	from his	evidence.	P.W.9	-Zanpure		states	that
accused	had come to	him at	about 7	to	8	p.m.. It	may
also	be seen	that the	Waiter	P.	W.10-K	umbhar	stated
that at	about 7.30 t	o 8.00	p.m.	Jayde	ep	had asked	him
to	bring auto-rick	shaw.	Thus,	appel	lant	left	the
hotel	by 8.00 p.m.	and	not 9.30	p.m.		as stated	by
Ghugare.	Considering	the	distance	bet	ween	Sangli	City
and	Kolhapur, arrival	of	accu	sed	at	the	police

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station, Sangli City at about 10.30 p.m. is perfectly

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possible.

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There is no question of the confessional

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statement	recorded	by P	.W.1	2-S.C.Ra	jput	at	Exhibit	-37
being	put	to any use	at	the	trial.	Lea	rned	counsel
for	the	appellant right	ly	sub	mitted	that	the	decision
of	the Sup	reme Court in		Aghnoo	Nagesia	v.	State	of
Bihar,	reported	in 1966		Cri.L.J	.	100	rules	out
putting	such	a statement	to	any	use.	In	that	case
too,	the FIR	was lodged	by	the	accused	hims	elf.	The

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court co	nsidered	th	e possibility		of	severing
confessional	and	n	on-confessional state	ments	but	then
came to	conclude	that	severability te	st	was m	isleading
and the	entire	con	fessional statement	was	hit	by
Section 25	of th	e Evi	dence Act, if it	is m	ade to	a
police offi	cer.	As	regards the statem	ent	made	while
in custody	of	police,	the court observ	ed,	save	and
except as	provided	by	Section 27 of	the	Evidence	Act,
no part	of su	ch	statement could	be	tendered	in
evidence.	Though	at	the time of la	unching	a	report,
there was	no	question	of accused bein	g	in	custody,
which is	one of	the	requirement of Sec	tion	27 of	the
Evidence A	ct, the	Court	held that for	the	purpose	of
the case,	they	would	assume that the		appellant	was
constructively	in	polic	e custody and	t	herefore	the
information	contain	ed	in the first	inf	ormation	report

¶95

leading to the discovery of the dead body and the tangi was admissible.

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22.	In	the case at hand, all that the	learn	ed
Trial	Judge	had done is	to	put	the		statement	at
Exhibit-37	only	to that limited	use	.	It	may	be	seen
that	the	accused had the	ex	clusive	kno	wledge	that	the
body	of vic	tim was in Room		No.203	of	hotel	Elegant	at
Kolhapur	and	without his info	rmin	g it	may		not	have
been	possible	to discover	body	t	hough,		sooner	or
later,	people	would have l	earnt	of	it		independ	ently.

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It may however to be seen from the chronology of events that immediate disclosure to Sangli Police Station and communication by Sangli Police Station to

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Shahupuri Police Station, Kolhapur, lends a ring of

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credibility to the story.

¶101

23.	Lear	ned counsel for the appellant wondered as
to why	in	the circumstances the police station at
Shahupuri	was	required to make a station diary entry
of an		accidental death before proceeding to perform
inquest on	dead	body. It is true that upon receipt of
information	fro	m Sangli Police, PI Waghmale, P.W.-15
had d	irected	registration of an accidental death. It
may have	been	a mistake on the part of PI Waghmale to
register	an	accidental death when there was concrete
information	that	murder had taken place. However,
that in	itself	cannot lead to any doubt being cast on
the eviden	ce.	In this case, registration of an
accidental	death	may have been a step which PI
Waghmale	felt	proper at the relevant time. It does
not appe	ar	to be a part of any unscrupulous
machination,	But	even in case of such unscrupulous
machination	on	the part of investigating machinery,
the Hon’	ble	Apex Court has observed that the court
should	not	be influenced by such machinations
demonstrated		by the investigating officers conducting
investigation	or	preparing records unscrupulously. In

K.Yarappa

State of Karnataka v.

¶106

Reddy,

¶107

reported

¶108

(19998 SCC 715, the Apex Court observed in para 19 as

¶109

under:-

¶110

"But can the above finding (that the station

¶111

house diary is not genuine) have any inevitable bearing on the other evidence in this case ? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously ? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by investigating officers.

¶112

¶113

Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case."

¶114

In view of this, it is not possible to attach

¶115

any significance to the registration of accidental

¶116

death by Shahupuri Police Station though they had

¶117

concrete information about the murder.

¶118

25.		Learned counsel fo	r the appellant urged that
in	a	case based	on the circumstantial	evidence,	it
would	be	necessary	to establish a	chain	of
circumsta	nces	indicating	complicity of the	accused	in
the	crime.	He con	tended that in this ca	se, there	was
only	one	circumstance	viz. the parties	being	last
seen	toget	her which,	according to him, was	not	enough
to	conclude	about	complicity of the accused.	It	is
true	that	in this ca	se, there is no indicati	on as	to
why	the ac	cused should	have taken such a	drastic	step,
though	spe	culations in	this regard had been	aired	in
course	of	trial.	However, circumstances	brought	on
record	viz.	that	the parties were enj	oying	carnal
pleasure	for	quite some	time, that they	had ch	ecked-in

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¶120

Room No.203 in hotel	Elegant at	Kolha	pur on	28th
April, 1996, that none	else had o	pportuni	ty to	enter
into the said room till	the accused	left	it on	29th
April, 1996, that the ac	cused told	the	Receptionist	at
hotel not to disturb	his female	compa	nion, and	lastly
that the accused made	a disclo	sure	before	Sangli
Police Station about the	location of	dead	body	and
recovery of dead body fr	om the said	Room	No.203	in
consequence of this	disclosure,	conc	lusively c	omplete
the chain of circumstances.	True it	is,	that in	a
case raising on a	circumstantial		evidence,	the
prosecution has to esta	blish a c	hain	of circum	stances
unmistakably pointing out to	guilt of	th	e accused,	but
law does not prescribe	that chain	mu	st have	any
minimum number of links.	The chain	can	be short	as
well as long, with a few	or many	links.	All that	the
law requires is that	all the links	must	be	firmly
established and the chain	in itself	shoul	d be c	omplete
to leave no way for the	accused to	escape.	In	our
opinion, the circumstan	ces established	in	this	case